Sunday, May 28, 2000

Diversion program faces challenge

Need for attorney OK on cases disputed

By Susan Vela
The Cincinnati Enquirer

        COVINGTON — Kenton Circuit Court's new diversion program, which allows some first-time felony offenders to escape a criminal record, is facing some legal challenges.

        They involve Dustin Flynt, nephew of Hustler publisher Larry Flynt, who faces a drug possession charge, and Jimmy Elliott, a gas station employee who allegedly stole about $1,200 from his em ployer and then left on a trip to Florida.

        The question is whether those accused of such Class D felonies — punishable for one to five years in prison — can be offered diversion without a recommendation from commonwealth attorneys.

        Kenton Circuit Judge Greg Bartlett, who is presiding over Mr. Flynt's case, says no. Kenton Circuit Judge Douglas Stephens says yes. The Kentucky Court of Appeals is being asked to de cide.

        “Everybody saw it coming,” Judge Stephens said. “The statute is pretty broad and general. (But) it came up faster than most ... thought it would.”

        A 1998 state crime bill required diversion for all circuit courts. Kenton Circuit Court began implementing its program in December. Since then, about 75 offenders have been offered diversion.

        They will escape a criminal record if they meet the terms of their diversion agreements, which can entail community service, anger-management courses, other forms of counseling or substance-abuse treatment.

        The rules for Kenton Circuit Court's program stress that “the circuit court cannot act on a request for diversion absent a recommendation from a prosecutor.”

        Mr. Flynt filed an appeal with the Kentucky Court of Appeals after Judge Bartlett upheld those rules and said he wouldn't consider diversion for Mr. Flynt without recommendation from the commonwealth attorney's office.

        In Mr. Elliott's case, it was the commonwealth attorney's office that filed an appeal with the state appellate court. The arbiter in his case, Judge Stephens, thinks Mr. Elliott should be eligible for diversion, despite an opposing recommendation from the commonwealth attorney's office.

        The Kentucky Court of Appeals is asking the Kentucky Supreme Court for guidance.

        Judge Stephens said the source of his contention is that the commonwealth attorney's office has said no one who steals from his employer is eligible for diversion. However, the judge said, an employer who steals from his employees would be eligible.

        He also thinks that judges should have final say in any deal worked out between prosecutors and defendants.

        Don Buring and Anthony Bracke of Kenton County's commonwealth attorney's office, disagree.

        But, “we believe there needs to be clarity regarding the legal issues in the foreseeable future,” Mr. Buring said.

        They expect the new program will experience other challenges in about a year, when they should start seeing whether people completed the terms of their diversion.

        Kenton Circuit Judge Steven Jaeger has referred about 30 cases to diversion, all of them based on recommendations from the commonwealth attorney's office.

        “Prosecution is the job of the prosecutor,” he said. “We're here to give them a fair trial (and) level playing field. I can't tell them how to handle their cases.”

        Yet he admits to sometimes stiffening some diversion conditions. For example, he has required some offenders to pay more in restitution than the commonwealth attorney's office requested.

        “I want their recommendations, but I'm going to be the arbiter of what the conditions are,” he said.


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